Paralegal vows to open up the legal system
David Erickson / Whitefish Pilot - Hikers with skis or snowboards have already been taking advantage of new snow on Big Mountain prior to its Dec. 8 opening. Whitefish Mountain Resort spokesman Donnie Clapp reported Monday that 20 inches of new snow fell at the summit of Big Mountain on Sunday night, and 12 inches fell in the village over the weekend. Warmer weather and rain in the valley creeping up the mountain by Tuesday and Wednesday is helping turn all that dry, fluffy powder into a good, solid base. On the other hand, the warmer weather has meant the resort's snow-making machines were u…
By RICHARD HANNERS - Whitefish Pilot
Montana Sen. Jerry O'Neil, R-Columbia Falls, who will be term-limited out next year, faces new allegations of illegally practicing the law.
O'Neil said he provided help for a couple who have taken in 17 foster children over the years but got on the wrong side of the Montana Department of Public Health and Human Services (DPPHS).
"It looked like a case of retaliation," O'Neil said, noting that the couple paid an attorney $600 only to hear him say he couldn't handle the case because he was unfamiliar with administrative law.
"They never got their money back," O'Neil said.
Following a lengthy state investigation, O'Neil was ordered by the Montana Supreme Court in November 2006 to stop practicing law.
As a paralegal who has not attended law school and not sat for the Montana bar examination, O'Neil has "not met the Montana Supreme Court's character and fitness requirements," the Supreme Court ruled.
But the decision upheld an earlier Flathead County District Court injunction, O'Neil claims, which allows a non-lawyer to act "as a lay representative if authorized by administrative agencies or tribunals to do so."
O'Neil claims he has that authorization. On Oct. 4, James Keil, the DPPHS hearing officer in the foster family case, wrote to O'Neil explaining the "facts and procedures (that) will apply" in an upcoming hearing.
Keil's fourth bulleted condition notes that "a signed statement from (the party involved) identifying you as their authorized representative is all that is needed for you to proceed on their behalf — no state-issued licensure is required."
Brenda Wahler, however, a special assistant attorney general representing DPPHS, filed a complaint that O'Neil had violated the Supreme Court's ruling that he no longer practice the law.
O'Neil recently appealed the Supreme Court's permanent injunction to the U.S. District Court of Montana in Helena.
His appeal is based on his claims that practice of the law is protected by the U.S. Constitution's First Amendment right to freedom of speech and that the State Bar of Montana should not be exempt from federal antitrust law.
"The Montana state-sponsored 'integrated bar' monopoly on the practice of law constitutes an illegitimate and unconstitutional exercise of power in the suppression of freedom of speech, in violation of the First and Fourteenth amendments," he wrote.
The State Bar of Montana "is a mere corporate alter-ego" of the Montana Commission on the Unauthorized Practice of the Law (CUPL), O'Neil claims, noting that the two share "the same street and post office address, telephone number, Web site and letterhead."
"If the Montana State Bar were a purely private corporation, it would be subject to 'piercing the corporate veil' analysis" required under antitrust law, he said.
O'Neil refers in his federal appeal to Parker v. Brown, a 1943 U.S. Supreme Court decision that provides state government immunity from the Sherman Antitrust Act. He wants the federal courts to clarify and interpret how Parker applies to the practice of law.
Can the state "create a monopoly which is not only commercial but political in nature, which restricts freedom of speech regarding the interpretation and application of the law only to individuals licensed by the state to do so?" he asked in his appeal.
O'Neil said such an interpretation would be overly broad and impose prior restraint — or censorship — on anyone's discussion of the law.
He notes in his appeal that in the same year the U.S. Supreme Court ruled on the Parker case, it ruled in Murdock v. Pennsylvania that no state can require a license for the preaching the Gospel, in protection of freedom of religion.
In addition to criticizing how his case was handled in Montana courts — referring to "extrinsic fraud and a farcical manipulation of due process" — O'Neil claims that the only reason states continue to control practice of the law is "because licensed attorneys have been unwilling to attack this doctrine."
O'Neil also claims that CUPL chairman John Connor has violated "the ethical rule against government attorneys using threats of criminal prosecution to gain an advantage in a civil case."
On Nov. 16, Connor notified O'Neil that he faced criminal and civil sanctions for "willfully violating the law" in the foster family case.
But while Connor is the CUPL chairman, which is under the Montana Supreme Court and is part of the judicial branch of government, he "also sits as the Chief Criminal Counsel of the Montana Department of Justice," which is part of the executive branch, O'Neil claims.
In his federal appeal, O'Neil demands a jury trial and seeks declarations limiting the states' antitrust exemption to "purely commercial activities only" and stating that the practice of law "consists of nothing more (nor less) than the First Amendment protected discussion and analysis of the law."
He also wants the Montana Supreme Court ruling to be voided and both the FTC and the Department of Justice to be compelled to take action regarding state regulation of the practice of law.
On Nov. 28, O'Neil wrote to both the U.S. Department of Justice's Antitrust Division and the Federal Trade Commission asking for assistance in his case.
"I need your help!" he began his letter.